U.S. Court of Appeals for the Armed Forces Vacates HIV Aggravated Assault and Reckless Endangerment charges in Case of LTC Kenneth Pinkela (Press Release)

Press Release from The Sero Project

Ken Pinkela serves as a member of Sero’s Advisory Board.

New York, NY April 24, 2015:

The United States Court of Appeals for the Armed Forces (CAAF) has vacated HIV-related Aggravated Assault and Reckless Endangerment charges in a U.S. Army case involving LTC Kenneth Pinkela.

In the official CAAF announcement released on April 22, 2015, the high court said:

That said petition is hereby granted on the following

issue:

WHETHER THE EVIDENCE WAS LEGALLY SUFFICIENT TO FIND BEYOND

A REASONABLE DOUBT THAT APPELLANT COMMITTED AGGRAVATED

ASSAULT AND RECKLESS ENDANGERMENT IN VIOLATION OF ARTICLES

128 AND 134, UCMJ, BY ENGAGING IN UNPROTECTED SEX WHILE

HIV-POSITIVE.

That the decision of the Army Court of Criminal Appeals is

vacated and the record of trial is returned to the Judge

Advocate General of the Army for remand to that court for

reconsideration in light of United States v. Gutierrez, 74

M.J. 61 (C.A.A.F. 2015)

In February of this year, the CAAF ruled that Air Force Technical Sergeant David Gutierrez, who was accused of not disclosing his HIV positive status to sexual partners, was not guilty of Aggravated Assault and reduced charges against him to Assault and Battery. At the time of the alleged sexual contacts, Gutierrez was on antiretroviral medication, had an undetectable viral load and was not accused of transmitting HIV.

The Sero Project, a national network of people living with HIV, applauds the CAAF for its rulings in both the Gutierrez case as well as the more recent ruling in the Pinkela case, but noted the military still is out of step with contemporary science and other arms of the U.S. government.

“While the Centers for Disease Control, the U.S. Congress, the National Institutes of Health and other government agencies categorize HIV as a chronic manageable illness, military lawyers and military court decisions still explicitly label HIV as a ‘death sentence.’ They can’t have it both ways. While we applaud CAAF’s recent decisions, it is time for the entire Department of Defense to address HIV for the reality it is today, based on science not stigma,” said Sean Strub, Sero’s executive director.

The Sero Project called on the U.S. Army to re-evaluate its prosecution against Pinkela, who also serves as the volunteer director of Sero’s Military Policy Project. “There’s no rational basis for continuing to prosecute Ken,” said Strub.

Pinkela’s military legal counsel has accused the Army of inadequately investigating the charges against Pinkela and of refusing to allow critical evidence to be presented at trial. Pinkela has volunteered to undergo phylogenetic testing, which could prove the complaining witness acquired HIV from another party, but the prosecutors declined to order such a test.

In the National Defense Authorization Act (NDAA) of 2014, Congress included specific direction to the Secretary of Defense to review and report back to Congress on all HIV- related personnel and disciplinary policies and procedures, to make sure they are consistent with contemporary science. That report has not yet been released.

H.R. 1586: Repeal Existing Policies that Encourage and Allow Legal HIV Discrimination Act of 2015, introduced by Rep. Barbara Lee (D–Cal.) and Rep. Ileana Ros-Lehtinen (R–Fla.), seeks to help end the criminalization of HIV by providing guidance to the states and military to modernize their statutes to make them reflect contemporary science and not unduly stigmatize people with HIV.

The Sero Project is a network of people with HIV and allies fighting for freedom from stigma and injustice. Founded in 2012, Sero raises awareness, conducts research and mobilizes grassroots communities, policy leaders and advocates to address HIV criminalization.

U.S. Court of Appeals for the Armed Forces Vacates HIV Aggravated Assault and Reckless Endangerment charges…

Kenya: Detailed analysis of recent High Court ruling on Kenya’s HIV-specific law by Annabel Raw, head of Health Rights Programme at the Southern Africa Litigation Centre

On 18 March 2015, in Aids Law Project v Attorney General and Others [2015] the High Court of Kenya declared section 24 of the HIV and AIDS Prevention and Control Act (“Act”) unconstitutional. I applaud the impetus of the decision but I want to argue that the narrow focus of the Court’s judgment reduces its potential to advance rational health policies and laws.

Section 24(1) of the Act requires a person aware of being HIV-positive to “take all reasonable measures and precautions to prevent the transmission of HIV to others” and to “inform, in advance, any sexual contact or persons with whom needles are shared” of their HIV-positive status. Subsection (2) prohibits “knowingly and recklessly, placing another person at risk of becoming infected with HIV”. Contravention of these provisions is a criminal offence punishable by imprisonment for up to seven years, and/or a fine. Under section 24(7), a medical practitioner who becomes aware of a patient’s HIV-status may inform anyone who has sexual contact with that patient of their HIV-status.

In 2010, the AIDS Law Project sought a declaration that section 24 of the Act was unconstitutional and “unacceptable discrimination” on the basis of health status. It argued that the undefined terms of “inform”, “in advance” and “sexual contact” renders section 24 vague and overbroad, contrary to the principle of legality. It submitted that the provision violates the right to a fair hearing, equality, non-discrimination, and sexual privacy. The petitioner was supported by an amicus curiae, the Centre for Reproductive Rights, which made submissions on the disproportionate impact that the provision would have on women, exacerbating stigma and undermining public health interventions.

In a unanimous judgment of a sitting of three judges of the High Court, Lenaola HJ held that the central issue was the provision’s vagueness and overbreadth. Focussing solely on the absence of a definition for “sexual contact”, the Court held that it is impossible to determine what acts are prohibited. Further, given that section 24 places no obligation on sexual contacts who have been informed of another’s HIV-status to keep that information confidential, the provision does not meet the standards for a justifiable limitation of the constitutional right to privacy.

Similar criminal provisions exist in a number of countries. The Constitutional Court in Zimbabwe is, for example, currently considering the constitutionality of Zimbabwe’s HIV criminalization law. The Kenyan judgment must be applauded to the extent that it emboldens the human rights critique of these laws and compels the Kenyan government to reconsider the provision.

It is disappointing, however, that the privacy violations were constructed so narrowly, with the Court failing to appreciate the risks of criminalizing non-disclosure more broadly, particularly for vulnerable groups, as raised by the amicus. Furthermore, by framing the vagueness and overbreadth ruling so strictly, the inhibiting effects of criminalization on effective public health interventions remain legally unscathed.

Insofar as the courts may be a useful forum to advance health rights and public health, perhaps a better legal foundation would be a rationality review of legislation. In a number of common law jurisdictions, this entails testing conduct or law against the ends that it claims to achieve. The standard typically requires that conduct needs to be rationally connected to a legitimate government interest or purpose in order to be lawful.

As made clear by the Act’s long title, its purpose is to prevent, control and manage HIV and AIDS, promote public health, and deliver appropriate care for persons living with HIV. The criminalization of HIV transmission and non-disclosure has come under heavy criticism by leading international experts and bodies for failing to protect human rights in a way that promotes public health initiatives for the effective treatment and control of HIV. If the argument against criminalization of HIV transmission is found persuasive in court, the legislation should be found irrational because it employs a strategy that is harmful to its purported ends.

It is in this sense that we might consider rationality review when using the courts in similar jurisdictions as fora to insist on public health policies and laws that are founded in scientific evidence and not fear and stigma.

Greece: Mandatory HIV testing law, Health Decree 39A, repealed again by Prime Minister Alexis Tsipras

“I haven’t felt greater shame than when they caught us.”

That’s what Georgia told me as she recalled the moment in April 2012 that police detained her and dozens of other women alleged to be sex workers and forced them to take HIV tests. Those found to be HIV positive, such as Georgia, were arrested and charged with causing intentional grievous bodily harm (a felony) or attempted bodily harm (a misdemeanor), for allegedly having unprotected sex with clients while knowing they were HIV positive. The police and media outlets publicized the women’s personal data and photographs, and the Greek Center for Disease Control disclosed their HIV-positive status.

The good news is that today, Greek Prime Minister Alexis Tsipras announced the repeal of the health regulation that was used to justify these roundups. UNAIDS, the Joint United Nations Programme on HIV/AIDS, and human rights organizations, including Human Rights Watch, had raised concerns about the regulation, which allowed the authorities to conduct HIV testing without informed consent in a misguided effort to curb the transmission of infectious diseases.

Most of the women were acquitted of all charges. But at least two of them, including Maria, a vivacious young woman who shared with me the humiliation she suffered but also her hopes for the future, have since committed suicide.

Sex workers continue to face other challenges. A new policing plan for the center of Athens announced on March 12 includes targeted operations against “women sex workers,” among others. Many women selling sex on the streets fall afoul of the strict regulations governing legal sex work and face daily harassment by the police.

Repealing a health regulation that led to such terrible abuse is a good first step. But the Greek government should also implement a genuine public health approach to people who exchange sex for money, drugs, or life necessities. And this means ensuring that police operations respect the rights of women whose lives are hard enough already.

US: REPEAL HIV Discrimination Act reintroduced by Congresswoman Barbara Lee even as some US states propose new HIV-specific criminal laws

The past month or so has seen a huge amount of activity around overly broad HIV criminalisation in the United States, culminating the reintroduction of the REPEAL HIV Discrimination Act by Congresswoman Barbara Lee.

As well as on-going arrests and prosecutions of individuals for alleged non-disclosure (and some excellent reporting on certain cases, such as that of Michael ‘Tiger Mandingo’ Johnson in Missouri or of two new cases on the same day in Michigan) new problematic HIV-related criminal laws have been proposed in Alabama, Missouri, Rhode Island and Texas.

Fortunately, most of these bills have been stopped due to rapid responses from well networked grass roots advocates (many of whom are connected via the Sero Project’s listserv) as well as state and national HIV legal and policy organisations, including the Positive Justice Project.

REPEAL HIV Discrimination Act

On March 24th, Congresswoman Barbara Lee reintroduced a new iteration of the REPEAL HIV Discrimination Act (H.R.1586), “to modernize laws, and eliminate discrimination, with respect to people living with HIV/AIDS, and for other purposes”.

The full text of the bill can be found here.

The last time the REPEAL Act was introduced, in 2013, it had 45 co-sponsors before dying in committee.  The first iteration, introduced in 2011, achieved 41 co-sponsors.

As of April 15th, the 2015 iteration has three co-sponsors, two Democrats – Jim McDermott and Adam B Schiff – and one Republican, Ileana Ros-Lehtinen.

As in 2011 and 2013, the bill has been referred to three House Committees: Judiciary, Energy and Commerce, and Armed Services.

Back in 2013, the Positive Justice Project produced an excellent toolkit that provides advocates with resources which “can be used in outreach efforts, including a guide for letter writing campaigns, calling your representative’s state and Washington D.C. offices, or meeting with your representative or the representative’s legislative staff.”

If you’re in the US, you can also show Congress that you support this bill at: https://www.popvox.com/bills/us/114/hr1586

Alabama

On April 1, 2015 the House Judiciary Committee of the Alabama Legislature held a hearing on HB 50, proposed by Democrat Representative Juandalynn Givan, that would increase the penalty for exposure or transmission of a sexually transmitted infection from a class C misdemeanour (punishable by up to 3 months in jail and a $500 fine) to a class C felony (punishable by up to 10 years in prison).

Representative Givan was apparently inspired to propose the bill after reading about a pastor in Montgomery, Alabama, who admitted in an October 2014 sermon that he was living with HIV and engaging in sex with women in his congregation without having disclosed his status.  (He wasn’t prosecuted, but appears to have lost his job, as of the last news report in December 2014.)

In an interview in March 2015, she told AL.com that Alabama is one of only 16 states in the nation where it is a misdemeanour rather than a felony to ‘knowingly expose another person to a sexually transmitted disease’.

“What this bill is about is responsibility and accountability…The aim of this bill is not to punish those people with a sexually transmitted disease but to hold those people accountable,” that knowingly transmit dangerous illnesses to other people.

Some of the testimony before the House Judiciary Committee – most of it against the bill – is reported (rather poorly) in the Alabama Political Reporter.

Before the hearing began, the Positive Justice Project Steering Committee sent a powerful letter to the members of the House Judiciary Committee, voicing their strong opposition to the bill.

Medical experts and public health officials agree that criminalizing the conduct of people living with HIV does nothing to decrease the rates of infection, and may actually deter conduct and decisions that reduce disease transmission. Consequently, the American Medical Association, HIVMA, ANAC, and NASTAD have issued statements urging an end to the criminalization of HIV and other infectious diseases. Notably, the U.S. Department of Justice recently issued “Best Practices Guide to Reform HIV-Specific Criminal Laws,” which counsels states to end felony prosecutions of people living with HIV as contrary to the relevant science and national HIV prevention goals.

The bill remains with the House Judiciary Committee, but seems unlikely to be passed given that there are no co-sponsors.

Missouri

On March 10th, Republican Representative Travis Fitzwater introduced HB 1181, which proposed adding ‘spitting whilst HIV-positive’ to Missouri’s (already overly draconian) current HIV-specific criminal statute.

It is unclear what caused Rep Fitzwater to introduce the bill.  However, advocacy against it was swift, with the local chapters of both ACLU and Human Rights Campaign, and Missouri-based HIV advocate, Aaron Laxton, planning to testify against it within days of it being introduced.

Although the bill was scheduled for a public hearing before the Civil and Criminal Proceedings Committee on April 7th, the community’s quick response meant the bill was not heard. According to Laxton, “within a matter of hours every member of the Civil and Criminal Proceedings Committee has received calls, emails, tweets and messages from many people” against the bill.

The proposed bill now appears to be dead, and advocacy in Missouri is now focused on modernising the existing HIV-specific law (which includes criminalising biting whilst HIV-positive) to take into account the latest science around HIV risk and harm.

Rhode Island

On February 24th, Republican Representative Robert Nardolillo introduced a new HIV-specific criminal law (H 5245) that would have criminalised HIV non-disclosure in the state for the first time.

In an interview with Zack Ford on thinkprogress.org, Rep Nardolillo said that as a survivor of sexual abuse he was surprised to discover that Rhode Island law does not allow for harsh enough penalties if HIV is passed on during a sexual assault.

However, although his proposed bill created a felony when someone with HIV “forcibly engages in sexual intercourse,” it also criminalised when someone “knowingly engages in sexual intercourse with another person without first informing that person of his/her HIV infection.”

The entire hearing before the Rhode Island House Judiciary Committee was captured on video, and an excellent blog post by Steve Ahlquist on RIFuture.org highlighted both Rep Nardolillo’s ignorance of the potential harms of the bill, and the sustained and powerful testimonies against the bill from public health experts, people living with HIV and HIV NGOs alike.

Ahlquist concludes, “In the face of such strong opposition, it seems extremely unlikely that this legislation will advance out of committee.”

All testimonies are available to view in short video clips on the blog. You can also read the written testimony of the AIDS Law Project of the Gay & Lesbian Advocates & Defenders (GLAD) here.

Texas

On February 25, Republican Senator Joan Huffman introduced SB 779, which would essentially have created an HIV-specific criminal law by the back door.

Texas repealed its previous HIV-specific criminal law in 1994 and uses general criminal statutes, including attempted murder and aggravated assault, for potential or perceived HIV exposure and alleged HIV transmission cases.

According to the Advocacy Without Borders blog, “SB 779  proposes to amend the state Health and Safety Code to allow for HIV test results (which are currently confidential) to be subpoenaed during grand jury proceedings – and for a defendant’s medical records to be accessed without their consent to establish guilt/innocence and also potentially to be used to determine sentencing. Essentially, this bill proposes to criminalize having HIV.”

The proposed law, and a number of other proposed HIV-related laws, was also critiqued in a Dallas Voice article highlighting the opinion of Januari Leo, who works with Legacy Community Health Service.

Leo, a longtime social worker who has worked with clients living with HIV, is blunt about the three bills: “They would criminalize HIV. HIV isn’t a crime. It’s a public health problem…These new bills use HIV status as a crime, against people who are suspects in a crime but have yet to be proven guilty. They’re allowing prosecutors to use private medical records, as mandated under HIPPA, as a weapon.”

Although it was considered in a public hearing before the State Affairs Committee on April 16, it now appears to be dead.

 

 

 

 

Victorian Government to repeal 19A and address HIV stigma

The Victorian Government has announced it will repeal section 19A of the state’s Crimes Act, which specifically criminalises intentional transmission of HIV and is widely considered to stigmatise people living with HIV. The law is the only one of its kind in Australia, singling out intentional HIV transmission for harsher penalties of up to 25 years imprisonment, while the maximum penalty for manslaughter is 20 years.

HIV organisations have lobbied for the change for some time, arguing that section 19A is stigmatising and unnecessary, because intentional infection with HIV could be considered under existing criminal offences such as “causing serious injury”.

Stigma against people living with HIV is also widely understood to be counterproductive to HIV prevention, and the Joint United Nations Programme on HIV/AIDS and the Global Commission on HIV and the Law and have singled out HIV-specific criminal laws as contributing to HIV stigma.

“People living with HIV are entitled to equality before the law, and this is another step forward in ensuring that,” Victorian Attorney-General Martin Pakula said.

“This is about reducing the stigma and discrimination faced by people living with HIV, and in turn promoting equal protection by the law of all Victorians.”

Equality Minister Martin Foley told the Star Observer he understood the potential for the repeal of 19A to be met with some resistance among gay men, but said it was a perfect example of why this is a necessary reform.

“This is about stigma, and removing stigma in particular within the community, and that’s almost an expression of how stigma creates within the community this self-fulfilling prophecy,” he said.

“I understand the whole notion of protecting members of the LGBTI community from transmission, but it’s not by punitive ‘big sticks’, it’s done through public health positive messaging… inducing fear and pushing people underground has been shown to be counterproductive.

“As so many informed, global experts — let alone community experts have said, this is how you do it, by removing the stigma, by encouraging proper discussion within the community about safe-sex practises, and if the disease is there, appropriate treatment.”

A commitment from the then-Labor Opposition to repeal the law was secured during last year’s AIDS 2014 conference in Melbourne, on the back of a campaign led by Living Positive Victoria and the Victorian AIDS Council.

“Research around the world shows this is the right way to combat HIV,” HIV Legal Working Group chair Paul Kidd said.

“Our organisations strongly believe the Public Health and Wellbeing Act provides the best way to deal with allegations of risky behaviour — keeping the public safe and protecting human rights.”

Doherty Institute director and local co-chair for AIDS 2014 Professor Sharon Lewin said the repeal was important outcome from the conference.

“Reducing HIV transmission is best approached through effective public health policy and community engagement — not through criminalisation and stigma,” she said.

“The repeal of section 19A is a very welcome announcement and an important enduring legacy from AIDS 2014 to see an end to stigma and discrimination for all people living with HIV.”

Victorian AIDS Council chief executive Simon Ruth called on the Coalition to support the repeal.

“Now that this legislation has been introduced, we hope it is met with the same bipartisan support we have seen in the Victorian response to HIV/AIDS historically,” he said.

“Repealing 19A will allow us to combat the stigma experienced by PLHIV and to continue our work in HIV prevention — a vital step forward if we’re to see a future with no new HIV notifications in Victoria.”

The then-Coalition government indicated support for “removing discrimination” associated with section 19A of the Crimes Act during AIDS 2014.

US: Missouri proposal to add spitting whilst HIV-positive to criminal law likely defeated following strong pushback

On Tuesday, the Missouri House Committee on Civil and Criminal Proceedings held a hearing on HB 1181, a bill that would criminalize individuals knowingly infected with HIV who spit at another person. Contact with saliva has never been shown to result in HIV transmission.

HRC Senior Legislative Counsel Alison Gill testified in opposition to this harmful bill.

“According to the Presidential Commission on the HIV Epidemic, criminal sanctions for HIV transmission must be carefully drawn, directed only towards behavior which is scientifically established as a mode of transmission, and should be employed only when all other public health and civil actions fail to produce responsible behavior,” she testified. “H.B. 1181 fails to meet this standard because it criminalizes behavior with a low or negligible risk of HIV transmission, which may result in stigmatization and negative health outcomes among people with HIV and the LGBT community in Missouri.”

HRC urges the Missouri lawmakers to oppose this unnecessary and harmful bill.

Czech Republic: Health Ministry proposes law to make HIV testing mandatory for key populations

The Czech Health Ministry is pushing a proposed amendment to the law on public health which would make HIV testing compulsory for some people in high risk groups. While the ministry argues that this is to curb the spread of the disease and ensure early treatment, human rights advocates say it would mean a serious breach of human rights.

HIV testing in the Czech Republic is conducted anonymously and is free of charge. In its prevention programmes the Czech AIDS Help Society highlights the importance of getting tested in order to enable early treatment of the disease and protect others in the event of a positive outcome. Still many people who engage in what is seen as high-risk behaviour do not want to undergo testing. The Czech Health Ministry now wants to change that and force people who are considered to be at high risk to undergo testing or face a tall fine.

The proposed amendment to the law has already passed without opposition through the health committee of the Chamber of Deputies and is due to go into a third reading in the lower house. However it has stirred controversy among human rights advocates, and is strongly opposed both by the Czech AIDS Help Society and the government’s committee for the rights of sexual minorities.

Robert Hejzák, photo: Czech TelevisionRobert Hejzák, photo: Czech Television Robert Hejzák from the Czech AIDS Help Society says repression is not the way to go –even in the interest of protecting public health.

“Human rights are universal and we do not accept the argument that in the case of HIV they should be violated in the interest of public health. Moreover HIV positive people are not a direct threat to the public – this is not ebola, it is not tuberculosis or even the flu.”

The country’s chief hygiene officer Vladimír Valenta refuses to hear this argument saying that the health authorities have a duty to protect the public from an epidemic.

“We are talking about individuals who are at the centre of a high-risk environment and there is a higher probability of infection. From an epidemiological point of view HIV is no different from other diseases that put the population at risk. There is a danger off the virus spreading and this danger merits the same kind of protective measures as in other potential epidemics.”

Vladimír Valenta, photo: Filip JandourekVladimír Valenta, photo: Filip Jandourek At present the Czech Republic (with over 10 million inhabitants) has over 2,000 people registered HIV positive, and over 200 people have died of AIDS. Each year brings on average around 230 new cases. Under the present legislation testing is only compulsory for pregnant women in order to enable heightened protection of the unborn child. If the newly-proposed amendment passes through both chambers of Parliament and is signed into law by the president pretty much anyone considered high risk could be forced to undergo a test for HIV. How this would prevent them from spreading the disease further or even encourage them to act responsibly with regard to their own health is not clear and the answer to those questions may be decisive in whether lawmakers allow this particular amendment to pass through a third and final reading in the lower house.

Sudan: Draft law providing rights and protections for people living with HIV also comes with responsibilities, including criminalising 'intentional' transmission and non-disclosue to 'prospective spouses'

April 2, 2015 (KHARTOUM) – Sudan is in the process of drafting a law to protect the rights of those living with HIV/AIDS and ensure that they receive medical and psychological care. The bill, which is being drafted by legal experts, people living with HIV/AIDS, physicians and officials, will also criminalise the intentional transmission of the disease.

Sudan’s ministry of health revealed last December that there are 79,000 cases of AIDS in the country.

The draft law would state that people living with HIV/AIDS enjoy all the rights guaranteed by the constitution and international conventions ratified by Sudan.

It prohibits any form of discrimination based on HIV status that would lead to the degradation of their dignity or erosion of their rights or exploitation.

Furthermore, the draft bill gives the patients the right to housing, access to goods and services and prohibits subjecting any citizen to HIV check as a condition for employment or dismissing employees who contract the virus unless it is proven through a medical report that they are incapable of performing their job functions.

Even then, they will have the right to request being transferred to another job.

The law granted HIV/AIDS patients the right to request open-ended sick leave with full pay in case of health-related complications and to receive social security.

For children living with the virus, they would have the right of access to health care and medical counseling and cannot be dismissed or transferred from their schools.

The law also guarantees confidentiality of their information and ensures that it cannot be published in the media without the patient’s consent.

Court trials can be held in a closed setting if one of the parties involved has HIV/AIDS, the law says. It also dictates that HIV screening would be voluntary and confidential. It would also allow infected moms to retain custody of their children.

But the law also obliges patients to take the necessary steps including seeking medical help to prevent transmission of the virus to others. Failing to do so would be punishable by law.

Should an infected individual decide to marry they should notify their prospective spouse and comply with instructions that prevent transmitting the virus.

US: Advocacy underway in Alabama to fight newly proposed bill to change 'knowingly' transmitting an STI from a misdemeanor to a felony

HIV/AIDS advocacy groups are preparing for a fight against a piece of legislation that would heighten the penalty for knowingly exposing a sexually transmitted disease to another in Alabama. Research shows stigmatizing and criminalizing HIV doesn’t reduce the transmission rate, and it actually discourages people from getting tested, Kathie Hiers, executive director of AIDS Alabama, said.

Rep. Juandalynn Givan’s bill is vague and makes is possible for spreaders of any sexually transmitted disease to be charged with a felony, she said.

“The way the bill is written if anyone puts anyone at any risk for any STDs or HIV it can be a felony,” Hiers said in an interview with AL.com. “Now, you can interpret that as any woman who has HPV could be guilty.”

She said 85 percent of women have HPV, a sexually transmitted disease, and many don’t even know it.

Givan, D-Birmingham, said she stands behind her proposed legislation.

“This piece of legislation simply imposes greater penalties for those who maliciously with the intent to recklessly by some type of malice or reckless disregard for the life and the health of another human being intentionally goes out and infects another person,” she said.

Givan said the intent of the bill isn’t to keep anyone from being tested for HIV.

She said Alabama law already defines a sexually transmitted disease, but she would be open to amendments to her bill.

The lawmaker decided to propose the legislation, heightening the penalties under current law from a Class C misdemeanor to a Class C felony, after hearing about a Montgomery pastor confessing his HIV-positive status to his congregation and admitting he engaged in sex with unknowing women.

A Class C felony carries a prison sentence of one to 10 years. A Class C misdemeanor carries a maximum prison sentence of three months.

Givan thinks current law is too lenient, and people who are intentionally infected are too embarrassed and afraid to come forward to law enforcement.

Alabama is one of only 16 states in the nation where it is a misdemeanor offense to knowingly expose another person to a sexually transmitted disease, she said.

Juan McFarland, the former pastor of Shiloh Missionary Baptist Church in Montgomery, admitted during a sermon in September 2014 to being HIV-positive since 2003 and having sex with multiple women who weren’t aware of his status.

Montgomery police haven’t charged McFarland with any crime, but McFarland lost his job.

“It is pretty severe if you have been infected with HIV for a period of time and are having sexual intercourse with multiple women,” Givan said in a previous interview with AL.com. “You can only imagine that someone may have become infected.”

The Infectious Diseases Society of America (IDSA) and the HIV Medicine Association (HIVMA) released statements against the criminalization of HIV.

“We oppose legal statutes that undermine public health by criminalizing transmission of HIV, viral hepatitis, tuberculosis and other infectious diseases,” the groups stated in a press release. “Studies have documented that these laws discourage individuals from being screened and treated for conditions when early diagnosis and treatment of infected individuals is one of the most effective methods to control the disease.”

Resources should be put behind evidence-based prevention methods not towards the criminalization, the groups said.

Hiers said everyone should take personal responsibility for protecting themselves against STDS, and criminalizing diseases doesn’t help.

“I think it lulls people into a false sense of security because if you make it all the responsibility of the HIV-positive person or the person who has the sexually transmitted infection then people may not practice universal precautions,” she said.

In this day and age, Hiers said everyone having sex needs to assume the other person has a sexually transmitted disease until they reach the point they are in a monogamous relationship and have been tested.

The Sero Project, a group working to end the criminalization of HIV, is expected to get involved and lead a grassroots effort against Givan’s bill if the lawmaker doesn’t table it herself.

Since research has proven that criminalizing HIV doesn’t reduce transmission, Sean Strub, the executive director of the group, said several states are considering decriminalizing it. Iowa became the first state to do so last year.

“So it is truly ironic that while much of the rest of the country is looking at changing these statutes, to slow the epidemic, a legislator in Alabama wants to make the statute more punitive, which will most likely make the epidemic in Alabama worse,” he said. “I’m sure that’s the opposite of what the legislator intends, but it is the likely outcome, which is tragic. Stopping this bill is, from Sero’s perspective, the single most compelling HIV prevention priority in Alabama right now.”

Center for Reproductive Rights welcomes Kenya High Court ruling that quashes vague and unconstitutional HIV-specific criminal statute

03.30.15 – (PRESS RELEASE) Key provisions of a law criminalizing the transmission of HIV in an effort to curb spread of the disease in Kenya are unconstitutional and violate fundamental human rights, according to a recent landmark ruling from the High Court of Kenya. The Center for Reproductive Rights filed an amicus brief in support of the case brought by AIDS Law Project in 2010.

While the “HIV and AIDS Prevention and Control Act, No.14 of 2006” (“HIV/AIDS Act”) codifies measures for treatment, counseling, care and support of people living with HIV—it contains troubling provisions that criminalize the transmission of HIV in certain instances and permit partner disclosure of HIV/AIDS status by health care workers. The law also discriminates against women, who are often subject to coercive practices and violations of informed consent and confidentiality when testing for HIV, particularly during pregnancy.

In its decision issued on March 18, the three-judge panel ruled Section 24 of the HIV/AIDS Act which criminalized transmission of HIV was unconstitutional under the Kenyan Constitution, as the provisions are too vague and that disclosing patients’ HIV status violates their rights to privacy and confidentiality. The judges also advised the State Law Office to review the HIV/AIDS Act to “avoid further litigation” surrounding the law.

Said Evelyne Opondo, regional director for Africa at the Center for Reproductive Rights:

“All people are entitled to quality health services—regardless of their HIV status or other health needs.

“This law has inflicted fear, shame, and punishment on countless Kenyans, especially pregnant women who desperately need and deserve quality maternal health care.

“We commend the High Court for finding the criminalization of HIV transmission as unconstitutional and a violation of Kenyans’ fundamental human rights. Now is the time for the Kenya government to immediately amend this legislation and ensure people living with HIV can get the care they need without fear of discrimination or criminalization.”

“We must ensure people living with HIV receive the proper medical care and support that they need,” said Jacinta Nyachae, Executive Director of the AIDS Law Project. “If we want to reduce the spread HIV and AIDS and put an end to the stigma, violence and discrimination surrounding the disease, our public policies must be based on medical evidence and grounded in human rights.”

In 2011, the Center for Reproductive Rights submitted an amicus brief in the AIDS Law Project v. Attorney General & Director of Public Prosecutions (Petition No. 97, 2010), challenging the constitutionality of the law. The Center claimed that the HIV law could be interpreted to criminalize women living with HIV who expose or transmit the virus to a child during pregnancy, delivery, or breastfeeding. The Center argued that criminalizing HIV exposure and transmission does not protect women from transmission, but instead exacerbates existing stigma and discrimination against women, exposing them to risk of prosecution. The Center’s brief also recommended the law’s provisions permitting partner disclosure of HIV status be quashed.